Getting a Divorce? Don’t Forget to Update Your Will

Although divorce does not completely revoke a will, it will prevent your former spouse from receiving any inheritance.

It is prudent to review your will during the divorce proceedings in order to address other changes that should be made and to protect your interests should one of you die before the decree absolute is granted.
Before the decree absolute

A divorce can take many months to go through and, until the decree absolute has been issued, a spouse or civil partner remains as such, and will benefit from any provisions made in the will. Even if no will exists, the rules of intestacy will still stand to make provision for the spouse.
If you die leaving a spouse or civil partner and children:

All of your personal possessions will pass to your spouse.

Your spouse or civil partner receives £250,000 free of inheritance tax (IHT).

If your estate is worth less than £250,000, your spouse or civil partner receives everything and your children receive nothing.

The rest of the residuary estate is split equally in to two halves. Your spouse or civil partner has a life interest in one half and the other half is divided equally amongst your children.
If you die leaving only a spouse or civil partner:

All of your personal possessions will pass to your spouse or civil partner.

Your spouse or civil partner receives £450,000 free of inheritance tax (IHT).

The rest of your estate is split equally between your spouse or civil partner and your parents (if they are still alive). If your parents are dead, the other half will be split between your brothers and sisters.

Therefore, it is wise, if you do not wish your spouse to benefit from your estate, to ensure you have an up to date will in place at the earliest opportunity following separation from your spouse.

It is important to remember, if you co-habit during this period of separation, to make provisions for your new partner and any children, otherwise the legal spouse may inherit.

Your will remains valid even if a judicial separation is granted by the court.
After the decree absolute

Once the decree absolute has been granted and after all outstanding financial issues have been settled, it is best to write a completely new will. If there has been a clean break between the spouses, there is no need to make any provisions for your former spouse. However, if you have been ordered to pay spousal maintenance, your former spouse remains a dependent and that should be taken into account.

It is worth noting that should you remarry, your will is invalidated and a new will must be made. The only exception to this is if the will is re-signed in advance ‘in contemplation’ of the marriage.

Where there is a second marriage and both parties have assets (and perhaps obligations to children) derived from former marriages, it is particularly important for wills to be updated and proper professional advice obtained.

If do not make a new will and do not remarry, and your former spouse is the only named beneficiary, the rules of intestacy will apply.

It is important to note that the law can allow relations and dependents to apply to Court in certain situations to overturn the provisions of a will, and to give what is considered as ‘reasonable provision’ to members of the family.
Other factors

Other factors to consider when amending your will following divorce are the persons named as guardians of your children and the executors or trustees named to administer your estate.

If a spouse is named as a guardian, this will be revoked upon divorce. Likewise, many people choose a spouse as first executor but divorce automatically revokes their appointment, and so it is important to update this information.

This article is intended as an easy to understand introduction to some aspects of divorce, free of legal jargon. However, divorce is a complex and, unfortunately sometimes, a non-intuitive area of law. Please contact us for more specific advice about your individual circumstances and the legal processes which apply.

Contact Jane McDonagh
jane.mcdonagh@smab.co.uk